The Intelligence Services Bill had its genesis in the
recommendations of the judicial inquiry into the Australian Secret
Intelligence Service (ASIS), conducted by the Honourable Gordon J.
Samuels AC and Mr Michael H. Codd AC, which reported to Government
on 31 March 1995. In the Inquiry's Public Report the
Commissioners made a number of recommendations, which they termed,
“recommendations for enhancement”. These included
placing ASIS on a statutory basis, expanding the role of the
Inspector-General of Intelligence and Security (IGIS) through the
conduct of retrospective audits of ASIS' compliance with
Ministerial authorisations and the establishment of a Parliamentary
Committee to oversee aspects of ASIS and the Australian Security
Intelligence Organisation (ASIO).

After consideration, these recommendations have been adopted.
This Bill seeks to continue the existence of ASIS by placing it on
a statutory basis, and
to
establish a Parliamentary Committee which is to oversee the
expenditure and administration of ASIS and ASIO. In addition
to these elements, other accountability and oversight mechanisms
have been included. These emphasise the lines of authority in
place for the agencies and the level of ministerial responsibility
for their conduct.

In placing ASIS on a statutory basis and setting out its functions,
the Government also took the decision to include the Defence
Signals Directorate (DSD) as both
agencies
have an external focus in advancing Australia's national security,
foreign relations and national economic well being. DSD's
functions are detailed in this Bill. While DSD remains a core
component within the Department of Defence, its accountability
regime has also been explained.

The services provided by ASIS and DSD are vital to the interests of
the country. However, there are occasions when these agencies
are inhibited in the conduct of their activities by the unintended
consequences of Australian laws. This Bill provides limited
immunities to the agencies, in respect of these unintended
consequences of Australian legislation, to enable the proper
conduct of their functions. Importantly, the legality and
propriety of the agencies' activities
will continue to be
overseen by the office
of the
IGIS, an independent watchdog who reports to the Prime Minister and
the Parliament. This oversight combines with an extensive
authorisation regime associated with the proper conduct of the
agencies' functions.

Consistent with the mechanisms of accountability for an agency's
actions, the Bill imposes a statutory obligation on the agencies to
respect the rights of Australians to privacy. The responsible
Ministers for ASIS and DSD are required to make written rules to
ensure that the activities of the agencies are carried out with due
regard to those rights. The IGIS will also monitor compliance
with these rules.

Finally, the accountability of ASIO and ASIS is extended through
the establishment of a new Parliamentary Committee to oversight the
expenditure and administration of these agencies. The
Committee is based on the existing ASIO Committee established under
Part VA of the ASIO Act. This Committee will be disbanded and
the new Committee, with expanded jurisdiction, established under
this Bill.

Through these statutory mechanisms, it is intended that this Bill
will provide a workable framework for the oversight and
accountability of the intelligence services, achieving a balance
between accountability and transparency and necessary
secrecy.

FINANCIAL IMPACT STATEMENT

It is not expected that the Bill will have a direct financial
impact.

Part 1 - Preliminary

Clause 1: Short Title

Clause 1 is a formal item which provides for the short title of the
Bill.

Clause 2: Commencement

The Bill commences 28 days after the day on which it receives Royal
Assent.

Clause 3: Definitions

This clause defines a number of terms used in the Bill. The
defined terms are expressed as having the meaning set out in this
clause unless the contrary intention appears in the Bill.
This is an expression of a standard principle of interpretation and
means that the terms must be read in the context within which they
appear.

Clause 4: Extension to external Territories

The Bill is intended to apply to all of Australia's external
territories including Norfolk Island and the Territories of
Christmas Island and the Cocos (Keeling) Islands.

Clause 5: Application of Criminal Code

Chapter 2 of the Criminal Code , which sets out the general
principles of criminal responsibility, applies to all offences
under the Bill. This is standard practice for all new
offences.

Proposed sub-clause 5(2) nominates extended geographical
jurisdiction category D for the purposes of Part 2.7 of the
Criminal Code. This means the offences apply whether or not
any part of the offences occur in Australia or the alleged offender
has a connection with Australia. The offences concern issues
related to national security. For a long time, offences of
this nature have been given extended reach under section 3A of the
Crimes Act 1914. Like theft of Commonwealth property, which
is extended in the same way (subsection 131.1(4), Criminal Code), a
victim of these offences is the Australian Government. It is
also inevitable that, in the course of the performance of the
functions envisaged under this Act, that the activities covered by
the offences may be carried out wholly outside Australia by people
who are not Australian nationals.

Part 2 - Functions of the agencies

Clause 6: Functions of ASIS

Subclause (1) (a) to (d) reflect the central functions of
ASIS.

·
sub-clause (a): the collection of intelligence information relating
to people or organisations outside Australia;

·
sub-clause (b): the distribution of that intelligence information
in accordance with Government requirements.

·
sub-clause (c): counter-intelligence activities. Such
activities are designed to protect the agency's activities and
national security, in conjunction with relevant Australian
agencies.

·
sub-clause (d): liaison: To engage authorities in other
countries, in the furtherance of Australia's national
interests.

Subclause (1)(e) is intended to provide a degree of flexibility for
Government in its tasking of ASIS. It allows Government to
modify ASIS' functional activities, under very limited conditions,
should the need arise.

6(2) details these limited conditions. Subclause 6(2)(a)
states that the responsible Minister must consult other Ministers
with related responsibilities prior to directing ASIS to undertake
activities under subclause 6(1)(e). Additionally, subclause
6(2)(b) requires the Minister to be satisfied there are
arrangements in place to ensure there are defined limits to the
activity in question. Subclause 6(2)(c) further requires the
Minister to be satisfied that acts done in relation to the activity
must be reasonable.

6(3) specifies that the direction under subclause 6(1)(e) must be
in writing.

6(4)
emphasises that in relation to the planning and conduct of all the
functions of ASIS, para-military activities or activities involving
personal violence or the use of weapons are not to be
undertaken.

Notes 1 and 2 draw attention to other limits to the agency's
functions and activities and to the fact that a copy of a direction
issued under subclause 6(1)(e) must be given to the IGIS as soon as
possible after it is given to ASIS.

Clause 7: Functions of DSD

This clause outlines the functions of DSD.

·
sub-clause (a): relates to the collection of intelligence
information by DSD in relation to people or organisations outside
Australia.

·
sub-clause (b): enables the distribution of that intelligence
information in accordance with government requirements.

·
sub-clauses (c) and (d) are not related to the collection of
foreign intelligence but rather provide for DSD to give assistance
to Commonwealth and State authorities, on matters within Australia,
in relation to information security, cryptography and
communications technologies.

Clause 8: Ministerial directions

The Ministerial Directions set parameters for activities within the
ambit of the functions of the agencies. Certain activities
conducted in pursuance of a function of an agency need to be
approved by the Government. The directions specify those
circumstances where the relevant agency head must seek
authorisation for certain activities pursuant to the agency's
functions. The directions are classified to enable an agency
to effectively perform its functions, however the IGIS will
oversight compliance with the directions.

Clause 9: Ministerial authorisation

The Minister must be satisfied of the criteria specified in
sub-clause (1) prior to an authorisation being issued. This
requirement for express ministerial authorisation is a formal
exercise of the Minister's supervisory responsibilities of the
agency. An authorisation is not in force indefinitely and
must stipulate a period for which the authorisation is
effective. The authorisations will be held by the agency and
may be accessed by the IGIS who is empowered to review compliance
with the authorisations.

Clause 10: Period during which authorisation has effect
etc.

This clause provides the Minister with the discretion to renew,
vary or cancel an authorisation.

Clause 11: Limits on agencies' functions

Sub-clause (1) sets the limits on the functions of the agencies as
established under clauses 6 and 7, consistent with the
recommendations of the Samuels' Inquiry.

This clause provides that the intelligence functions of ASIS and
DSD are performed only in support of Australia's national interests
and only in so far as those interests are affected by people or
organisations outside Australia. Subclause 2 stipulates that
the agencies do not have a policing or law enforcement role.
Nevertheless, the agencies are permitted to obtain and communicate
intelligence relevant to serious crime to police and law
enforcement agencies.

DSD also provides an important support service to other agencies
and authorities in relation to information security and other forms
of technical assistance as set out in subclauses 7(1)(c) and
7(1)(d). Accordingly, this clause provides that the
restrictions contained in sub-clauses one and two do not apply to
functions of DSD that are unrelated to intelligence
collection.

Clause 12: Limits on agencies' activities

Just as clause 11 sets limits on the functions of an agency, clause
12 sets limits on the activities carried out by an agency in the
course of the performance of its functions.

Clause 13: Co-operation with other authorities

The co-operation permitted under this clause is intended to be
mutually beneficial for the performance of the functions of the
specified authorities and agencies.

Clause 14: Liability for certain acts

This clause provides immunity from civil and criminal liability for
staff or agents of the agencies whose activities, carried out for
the purpose of collecting intelligence information about the
capabilities, intentions or activities of people or organisations
outside Australia, as intended and required by the Government,
might otherwise be prohibited by the unintended consequences of
certain Australian laws.

The purpose of the clause is to provide immunity in a limited range
of circumstances directly related to the proper performance by the
agencies of their functions. It does not provide a blanket
immunity from Australian laws for all acts of the agencies.
This limited immunity is necessary as certain Australian law,
including State and Territory law, could impose liability on the
agencies.

Clause 15: Rules to protect privacy of Australians

The agencies are required to take all possible measures to ensure
that their activities are undertaken with due regard to the rights
of Australians to privacy. This provision states that the
responsible Minister must make written rules regarding
communication and retention by agencies of intelligence information
concerning Australians. These rules ensure the agencies act
with propriety and in accordance with Government commitments to
protect Australians' privacy. The IGIS must be consulted
prior to the implementation of the rules. The
office of the IGIS
also monitors agency compliance with the rules as an independent
watchdog.

Part 3 - Establishment of ASIS and the role of the
Director-General

Division 1 - Establishment and control of ASIS

Clause 16: Establishment of ASIS on a statutory
basis

This clause continues the existence of the organisation known
as
the Australian Secret Intelligence Service.

Clause 17: Appointment of Director-General

This clause provides for the position of the Director-General and
the procedure for his or her appointment by the
Governor-General.

Clause 18: Control of ASIS

This clause provides that ASIS is to be under the control of the
Director-General who is responsible to the Minister on matters
concerning ASIS.

Clause 19: Briefing the Leader of the Opposition about
ASIS

This clause provides that the Director-General may brief the Leader
of the Opposition in the House of Representatives about ASIS.
The Director-General may only do so with the authorisation of the
Prime Minister, but the Leader of the Opposition may request a
brief at any time.

This clause limits the period of appointment for the
Director-General to five years, but allows the Director-General to
be reappointed.

Clause 21: Remuneration
etc.

This clause provides for the remuneration payable to the
Director-General.

Clause 22: Resignation

The Director-General may resign by signed notice to the
Governor-General.

Clause 23: Termination of appointment

Sub-clauses 23 (1)
and (3) outline those circumstances where the Governor-General has
a discretion to terminate the appointment of the
Director-General. Sub-clause
23 (2)
outlines those circumstances where the Governor-General must
terminate the appointment of the Director-General.

Clause 24: Acting Director-General

This clause allows for the
appointment of an Acting Director-General by the Minister
where there is a vacancy in the office of the Director-General or
where the Director-General is, for any reason, unable to perform
the duties of the Director-General.

Section 33A of the Acts Interpretation Act applies in
relation to acting appointments. This section provides how an
appointment may be expressed, what conditions the appointer may
determine and confers upon the appointee the powers, duties and
functions of the holder of the office. Section 33A limits the
period in which an appointee may act in an office which is vacant,
or becomes vacant, while the appointee is acting.

Clause 25: Outside employment

This clause prevents the Director-General from entering into paid
employment which, in the Minister's opinion, conflicts or may
conflict with the proper performance of the Director-General's
duties.

Clause 27: Disclosure of interests by
Director-General

The Director-General must disclose pecuniary or other interests to
the Minister which could conflict with the proper performance of
the Director-General's functions.

Clause 27: Delegation

This clause outlines which of his or her powers the
Director-General may delegate in writing to a staff member, who is
an employee (ie other than a consultant).

Part 4 - Committee on ASIO and ASIS

Clause 28: Committee on ASIO and ASIS

This clause provides for the establishment of a committee on ASIO
and ASIS
and details its composition .
In relation to ASIO, this committee replaces the committee on ASIO
established under Part VA of the Australian Security
Intelligence Organisation Act 1979 . Part VA is to be
repealed under the Intelligence Services (Consequential
Provisions) Bill 2001.

Clause 29: Functions of the Committee

The new Parliamentary Committee adopts the basic form of the
existing Parliamentary Joint Committee on ASIO, established under
Part VA of the Australian Security Intelligence Organisation Act
1979 , but expands its functions to examine expenditure and
administration of both ASIS and ASIO.

The Samuels' Inquiry recommended that the Committee oversight the
activities, expenditure and administration of ASIO and ASIS.
This recommendation has been adopted in relation to expenditure and
administration but not in relation to activities. The
oversight of operational activities falls within the province of
the IGIS who acts as an independent watchdog and reports to the
Prime Minister. Similarly under this clause the Parliamentary
Committee is not able to examine the agencies' compliance with the
rules under clause 15 as this is a responsibility of the IGIS, who
separately reports to the Government, the Parliament and the public
on this and other matters.

Clause 30: Directors-General and Inspector General of Intelligence
and Security to brief the Committee

Subject to the limitations on disclosure of operationally sensitive
information set out in clause 1 of Schedule 1, the Committee may
request that the IGIS and the Directors-General brief the
committee.

Clause 31: Annual report

This clause provides a mechanism whereby Parliament is informed of
the Committee's activities via an annual report.

Clause 32: Schedule 1

Schedule 1 provides further provisions about the
Committee.

Part 5 - Staff of ASIS

Clause 33: Employment of Staff

This clause allows the Director-General to employ the staff
necessary, to carry out the functions of ASIS, pursuant to the Bill
and establishes the staff as being Commonwealth employees of the
Director-General. The clause allows for staff to be consulted
by the Director-General in relation to the determination of terms
and conditions of their employment.

Clause 34: Engagement of consultants

This clause allows ASIS to obtain the expertise of persons with
specific qualifications and experience by engaging them on a
consultancy basis.

Clause 35: Applicability of Public Service Act
1999

Although ASIS staff are Commonwealth employees, they are not
employed under the Public Service Act 1999 . However,
this clause ensures that ASIS staff are not disadvantaged as
Commonwealth employees by providing that the principles of that Act
must be adopted by the Director-General where the
Director-General considers their
adoption is consistent with the functions of ASIS.

Clause 36: Special provisions relating to existing
staff

This clause preserves employment agreements of ASIS staff, in
existence prior to the commencement of the Act, until such time as
the staff member agrees to accept other terms and
conditions.

Clause 37: Staff grievances

This clause provides internal procedures within ASIS for the
consideration of grievances of staff and former staff of ASIS,
including the establishment of grievance review panels chaired by
independent chairs.

Clause 38: Application of Crimes Act

Clause 38 confirms that the Director-General and staff of ASIS are
Commonwealth officers for the purposes of the Crimes Act 1914 .

Part 6 - Miscellaneous

Clause 39: Communication of certain information -
ASIS

Subclause (1) relates to persons who acquired or came into the
possession of information as a result of being a staff member or
working under a contract with ASIS. Subclause (1) prohibits
the communication of information which relates to the performance
of agency functions unless communicated in a manner as specified in
sub-clause (1)(c). Due to the national security ramifications
of the disclosure of information of this kind, which could
potentially endanger ASIS and its agents, breaches of this
provision attract a criminal penalty.

Clause 40: Communication of certain information -
DSD

Subclause (1) relates to persons who acquired or came into the
possession of information as a result of being a staff member or
working under a contract with DSD. Subclause (1) prohibits
the communication of information which relates to the performance
of agency functions unless communicated in a manner as specified in
sub-clause (1)(c). Due to the national security ramifications
of the disclosure of information of this kind, breaches of this
provision attract a criminal penalty.

Clause 41: Publication of identity of staff

This clause makes it an offence, subject to limited exceptions, to
identify a person as an agent or staff member of ASIS or make
information public from which the identity of such a person could
reasonably be inferred or that could reasonably lead to the
identity of such a person being established. This clause
relates specifically to maintaining the secrecy of the identity of
ASIS staff who require the nature of their employment to remain
undisclosed in order to effectively carry out authorised activities
pursuant to their functions.

Clause 42: Annual Report

This clause requires the provision by the Director-General of ASIS
of an annual report to the Minister.

Clause 43: Regulations

This provision sets out a general regulation making power for the
Bill.

Schedule 1 - Committee on ASIO and ASIS

Part 1 - Procedure

Clause 1: Committee must not require certain information to be
disclosed

This clause prevents the Committee from requiring the disclosure of
operationally sensitive information or information that would
or might prejudice
national security or the conduct of foreign relations. The
Committee's functions do not extend to investigating such
information which remains within the jurisdiction of the
IGIS. In addition, as outlined in clauses 39 and 40, the
agency depends on being able to conduct the authorised activities
in accordance with its legislative functions. Such activities
would be jeopardised by the disclosure of information related to
those activities.

Clause 2: Power to obtain information and documents

This clause is substantially equivalent to section 92H of the ASIO
Act and sets out the administrative procedure to be followed by the
Committee in exercising its power to obtain information and
documents from individuals, other than the Director-General of
Security, the Director-General of ASIS, a staff member of ASIO or
ASIS, the IGIS or a member of staff of the IGIS. Unlike
section 92H of the ASIO Act, the period within which either
documents must be produced to the Committee, or a person appear
before it, has been set at 14 days.

Clause 3: Provision of information to Committee by ASIO and
ASIS

This clause is substantially equivalent to section 92J of the ASIO
Act and sets out the administrative procedure to be followed by the
Committee in obtaining information or documents from the
Director-General of Security or the Director-General of ASIS.
Unlike section 92J of the ASIO Act, the period within which either
documents must be produced to the Committee, or a person appear
before it, has been set at 14 days.

Clause 4: Certificates by Minister

This clause is substantially equivalent to section 92K of the ASIO
Act and provides for a situation where a person is giving evidence,
about to give evidence or about to produce a document to the
Committee which the Minister for ASIS or ASIO considers may result
in the disclosure of operationally sensitive information. In
such a case the Minister may issue a certificate to the Committee
stating that in the Minister's opinion, the Committee should not
continue to take evidence of the type considered to reveal
operationally sensitive information. The Minister is still
accountable to Parliament for a decision under Clause 4 of Schedule
1 and must table the certificate in both houses of
Parliament. As emphasised in clauses 39 and 40, the agency
depends on being able to conduct the authorised activities in
accordance with its legislative functions. Such activities
would be jeopardised through the disclosure of information related
to those activities.

Clause 5: Evidence

This clause is substantially equivalent to section 92L of the ASIO
Act and provides that evidence may be given to the Committee under
oath or affirmation. The clause provides that the Committee
is not to be taken to be an Australian Court for the purposes of
the Evidence Act 1995 .

Clause 6: Publication of evidence or contents of
documents

This clause is substantially equivalent to section 92G of the ASIO
Act and provides for procedures to be followed in the publication
of evidence and documents before the Committee. Evidence and
documents received from ASIS or ASIO staff cannot be disclosed or
published without the written authority of the relevant
Director-General. In addition sub-clauses 3(a) - (c) specify
when the Committee is required to seek advice from the responsible
Minister in relation to disclosure or publication and must not
disclose or publish where the Minister so advises. This is
intended to ensure that the authorised activities related to the
functions of the agency under the Act are not compromised through
disclosure.

Clause 7: Restrictions on disclosure to Parliament

This
clause is substantially equivalent to section 92N of the ASIO
Act. Sub-clause 7(1) of Schedule 1 restricts the nature of
what the Committee may publish subject to the discretion of the
respective Directors-General under sub-clause 7(2) of Schedule 1
and upon the advice of the responsible Minister. This is
intended to ensure that the authorised activities related to the
functions of the agency under the Act are not compromised through
disclosure.

Clause 8:
Continuation of evidence

This clause is substantially equivalent to section 92P of the ASIO
Act and covers a situation where a Committee has taken evidence,
but prior to the reporting of that evidence, the Committee as
constituted ceases to exist. In such a situation, the
subsequent committee may consider the evidence taken by the
former.

The offences in this clause are substantially equivalent to the
offences under section 92G of the ASIO Act. Sub-clause (1)
prohibits the publishing or disclosure of evidence or documents
before the Committee unless one of the exceptions in sub-clause (1)
(b) applies.

This clause is substantially equivalent to section 92M of the ASIO
Act. The clause creates offences in relation to the giving of
evidence, the production of documents and attendance before the
Committee, unless one of the exceptions applies.

Clause 11: Protection of witnesses

This clause is substantially equivalent to section 92Q of the ASIO
Act. The clause prohibits the commission of certain acts
against a person who has appeared or is due to appear before the
Committee as a witness or to produce evidence or documents before
the Committee. The offences draw on the Model Criminal Code
protection of witnesses offences by also covering reprisals against
witnesses.

Clause 12: Secrecy

This clause is substantially equivalent to section 92S of the ASIO
Act. The clause relates to current and former members and
staff members of the Committee and makes it an offence for such
people to treat information in a manner described in sub-clause
(1). Sub-clause 2 provides that current and former members
and staff members of the Committee cannot be required to produce,
disclose or communicate in court documents or information which
were obtained through his or her employment.

Clause 13: Prosecution of offences

This clause is substantially equivalent to section 92T of the ASIO
Act and requires prosecution to be instituted by the
Attorney-General or with the Attorney-General's consent.

Part 3 - Administration

Clause 14: Appointment of members

The appointment of members is similar to the appointment system
currently in place under section 92B(3) -(7) of the ASIO Act for
the appointment of members to the PJC on ASIO. This clause
provides procedures for the appointment of members from the House
of Representatives and the Senate and excludes Ministers, the
President of the Senate and the Speaker of the House of
Representatives from membership. The Prime Minister and the
Leader of the Government in the Senate must have regard to the
desirability of ensuring that the composition of the Committee
reflects the representation of recognised political parties in the
Parliament and must consult with the leader of each recognised
political party in both Houses of Parliament before appointing
Committee members.

Clause 15: Term of office

The clause provides for the term of office, when the member ceases
to hold office, resignation and appointments to fill
vacancies. The clause is substantially equivalent to the
terms of office currently in place under sub-sections 92B (8) -
(11) of the ASIO Act.

Clause 16 : Chair

The term “Chair” replaces the term “Presiding
Member” as used in the PJC on ASIO under section 92D of the
ASIO Act. This clause provides for the election, term of
office and resignation procedures for the Chair, who must be a
Government member.

Clause 17: Meetings

This clause provides for the time, place, keeping of minutes and
who should be the presiding member at meetings of the
Committee. The meetings of the Committee are to be conducted
in an equivalent fashion to that established under subsection 92E
(1) - (5) and (8) of the ASIO Act.

Clause 18: Quorum

The quorum of the meeting is four as under subsection 92E(6)(a) of
the ASIO Act. A quorum is constituted if, of the members
present, a majority are Government members. There may be an
equal number of Government and non-Government members present if
the presiding member is a Government member.

Clause 19: Voting at Meetings

This clause establishes the voting procedure which is substantially
equivalent to the procedure in place for the PJC on ASIO under
subsections 92E(6)(b) and (c) of the ASIO Act.

Clause 20: Proceedings

This clause establishes how the proceedings of the Committee are to
be conducted. The proceedings of the Committee are
substantially equivalent to the proceedings of the PJC on ASIO
under section 92F(1)-(3) of the ASIO Act.

Clause 21: Staff of the Committee must be cleared for security
purposes

This clause specifies the level of security clearance necessary for
the staff of the Committee to engage in the review of matters which
concern ASIS. This procedure was not required for the PJC on
ASIO, but the nature of the functions of ASIS warrant that such
security is now required.

Clause 22: Protection of information and documents

This clause relates to the secure holding of documents and the
return of classified material and is equivalent to subsection
92F(4) of the ASIO Act.